Citation Nr: 0200323
Decision Date: 01/10/02 Archive Date: 01/16/02
DOCKET NO. 00-21 901 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to an increased evaluation for post-traumatic
stress disorder (PTSD), currently evaluated as 30 percent
disabling.
REPRESENTATION
Appellant represented by: Arkansas Department of
Veterans Affairs
REMAND
The veteran served on active duty from March 1966 to March
1969. This matter comes before the Board on appeal from a
January 2000 rating decision of the North Little Rock,
Arkansas, regional office (RO) of the Department of Veterans
Affairs (VA).
During the pendency of this claim, there has been a
significant change in the law. On November 9, 2000, the
President signed into law the Veterans Claims Assistance Act
of 2000 (VCAA), which redefined VA's duty to assist, enhanced
its duty to notify a claimant as to the information and
evidence necessary to substantiate a claim, and eliminated
the well-grounded-claim requirement. See 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107 (West Supp. 2001). This change in
the law is applicable to all claims filed on or after the
date of enactment of the VCAA, or filed before the date of
enactment and not yet final as of that date. VCAA, Pub. L.
No. 106-475, § 7(a), 114 Stat. 2096, 2099-2100 (2000); 38
U.S.C.A. § 5107 note (Effective and Applicability Provisions)
(West Supp. 2001). Regulations implementing the new law were
adopted on August 29, 2001. See 66 Fed. Reg. 45,620, 45,630-
32 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R.
§ 3.102, 3.156, 3.159, and 3.326).
The record before the Board indicates that additional notice
and development is required in order to fulfill the
requirements of the new law. While many of the veteran's
outpatient mental health treatment records have been
associated with the claims file, there are two apparent gaps
that should be remedied. In particular, the veteran's
Fayetteville VA Medical Center mental health treatment
records have been associated with the claims file, but the
first such record is dated November 1996. His treating
psychiatrist saw him in December 1996 and noted that the
veteran was seen after a gap of a year and a half. The
doctor referred to a treatment note dated March 15, 1995, at
which time he had examined the veteran. The December 1996
notation carries an order to get the March 15, 1995, note
associated with the veteran's medical record. The treating
psychiatrist also stated that the psychologist may also have
seen the veteran on March 15, 1995. The records relating to
the March 15, 1995, visits should be associated with the
claims file. The veteran's previous treatment records, from
California, appear to be complete, through the note that his
case was closed in January 1995 because he had moved out of
state.
The RO had obtained the outpatient treatment records through
October 2000. In September 2001, the veteran submitted
copies of his treatment records dated from May to July 2001.
Given that the record shows the veteran to seek regular
counseling, approximately every month or two, it would appear
that there may be a gap in his VA treatment records between
October 2000 and May 2001. These records should be
associated with the file on remand, as well as any VA
treatment records from July 2001 to the present.
VA regulations require that, both in the examination and in
the evaluation of disability, it is essential to view each
disability in relation to its history. 38 C.F.R. § 4.1
(2001). If an examination report does not contain sufficient
detail, it should be returned as inadequate for rating
purposes. 38 C.F.R. § 4.2 (2001). The veteran underwent a
VA examination in December 1999 at the Fayetteville VAMC.
The examiner noted at least twice in the report that he did
not have the veteran's claims file to review. The veteran
had, by December 1999, been receiving ongoing counseling at
that VA medical center for three years. The examiner noted
that he had no other information available to substantiate
what the veteran told him, and the veteran did not, on the
basis of that interview, meet the diagnostic criteria for
PTSD. This is an implicit statement by the examiner that he
did not have all the information he needed in order to
evaluate the veteran fully. The claims file should have been
provided in connection with the examination, or the examiner
should have had the veteran's Fayetteville VAMC medical
records available in connection with the examination. He did
not, and he said so in the examination report. It is
incumbent on the rating specialist to return the report, with
the claims file, for clarification. However, as there has
been a considerable lapse of time since that interview, and
the veteran has continued to undergo counseling and
treatment, it would be appropriate at this point to complete
the claims file record and schedule the veteran for a new
examination.
Accordingly, this case is remanded for the following:
1. Request the following records from
the VAMC in Fayetteville, Arkansas:
a. Any treatment notes/initial
assessment dated in March 1995, with
particular emphasis on any
psychiatric or psychological
assessment.
b. Outpatient treatment records,
including mental health records,
dated from October 2000 to May 2001,
and from July 2001 to the present.
Associate all records received with the
claims file.
2. Ask the veteran whether he has had
any psychiatric treatment from any other
care providers since December 1999. If
so, he should provide the names,
addresses, dates of treatment, and
appropriate releases for any mental
health treatment records. Request any
records so identified, and associate all
responses with the claims file. If any
request for records is unsuccessful,
notify the veteran in accordance with
applicable law.
3. When the record is as complete as
possible, schedule the veteran for a VA
examination to evaluate his PTSD. The
claims file and a copy of this remand
must be made available to the examiner to
review in connection with the
examination, and the examiner is asked to
indicate in the examination report that
the claims file was reviewed. Any
necessary tests should be conducted.
The examiner is asked to review the
veteran's treatment records and to
identify symptomatology associated with
the veteran's PTSD as well as frequency
of manifestation. To the extent
possible, the examiner should distinguish
manifestations/symptoms associated with
the veteran's substance/ethanol abuse
disorder. If the examiner would find it
helpful in evaluating the veteran to
consult with the veteran's treating VA
psychiatrist or his counseling
psychologist, such consultation should be
conducted and a report of the
consultation included with the
examination report.
4. Review the claims file and the
examination report. If any development
is incomplete, or if the examination
report requires clarification or
completion, undertake corrective action.
Assure that all notice and development
required by the VCAA has been
accomplished.
5. Readjudicate the claim. If the
benefit sought is not granted, prepare a
supplemental statement of the case and
provide it to the veteran and his
representative. Allow an appropriate
period of time for response.
Thereafter, the case is to be returned to the Board for
appellate review, if otherwise appropriate. The appellant
has the right to submit additional evidence and argument on
the matter or matters the Board has remanded to the regional
office. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2001) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
J. SHERMAN ROBERTS
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2001), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2001).